This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996)

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-472

State of Minnesota,

Respondent,

vs.

Spencer Allen Tilmon,

Appellant.

Filed January 13, 1998

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

Ramsey County District Court

File No. K4961758

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)

Ira W. Whitlock, Whitlock Law Office, 906 Minnesota Building, 46 E. 4th Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Spencer Tilmon was convicted of two counts of first-degree criminal sexual conduct, and lesser offenses. On appeal he contends: (1) the district court abused its discretion in admitting expert testimony; and (2) the evidence is insufficient to support the convictions. We affirm the convictions but reverse and remand for resentencing because the district court improperly entered judgment on multiple convictions.

D E C I S I O N

I.

Tilmon argues the district court abused its discretion in allowing a nurse to testify that her physical examination of, and interview with, each girl was "consistent with" allegations of sexual abuse. Tilmon contends that this was "vouching" testimony improperly supporting the credibility of the victims' testimony. See, e.g., Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996) (improper to admit testimony that witnesses believed complainant's story of sexual abuse). We disagree.

As a general rule, an expert may not testify regarding the truth or falsity of a witness's allegations about a crime. State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984). Even a lay witness may not give such "vouching testimony." Van Buren, 556 N.W.2d at 551. The nurse, however, testified only that the interviews and physical examinations were "consistent with" sexual abuse. This type of testimony is frequently allowed based on the expert witness's opportunity to interview the victim and do a physical examination. See, e.g., State v. Goldenstein, 505 N.W.2d 332, 338 (Minn. App. 1993) (noting expert testimony in terms of "consistent with" sexual abuse), review denied (Minn. Oct. 19, 1993). Tilmon cites no authority holding that this frequently-used formulation of expert opinion is improper "vouching" testimony, and we have found none. Further, we note that much of the nurse's testimony was directed toward the negative physical examinations, which had no relationship to the credibility of K.S. and T.S. Moreover, the prosecutor did not argue that the nurse had concluded the girls were credible.

We conclude the district court did not clearly abuse its discretion in admitting the nurse's testimony. See State v. Steinbuch, 514 N.W.2d 793, 801 (Minn. 1994) (evidentiary rulings are sustained absent clear abuse of discretion).

II.

Tilmon argues that the evidence is insufficient to sustain his convictions on all four counts on which a conviction was entered. In reviewing a claim of insufficiency of the evidence, this court views the evidence in the light most favorable to the verdict, assuming the jury believed the state's witnesses and disbelieved contrary evidence. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). This court is limited to determining whether, under the facts in the record and any legitimate inferences to be drawn from them, a jury could reasonably find the defendant guilty. Id.

Tilmon's argument is directed at the credibility of K.S. and T.S. On appeal, however, this court does not weigh the evidence or reassess the credibility of the witnesses. Inconsistencies in the testimony generally "go to the credibility of the witnesses, which is for the jury to determine." State v. Okegbenro, 409 N.W.2d 1, 4 (Minn. App. 1987). We conclude the evidence is sufficient under this standard of review to sustain the convictions.

III.

The state points out that the trial court improperly adjudicated Tilmon on Count II because this conviction rested on the same conduct as that charged in Count I and violated a different section of the criminal sexual conduct statutes. Minn. Stat. § 609.04, subd. 1(1) (1996) (defendant may not be convicted of a crime and a lesser degree of the same crime); see State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989) (where two charges of multiple acts of sexual penetration, some committed before victim turned 13 and some after, were based on same evidence and the same acts, one conviction must be vacated). Accordingly, the conviction and sentence for Count II must be vacated. Because this changes the criminal history score on Counts I and III, we reverse appellant's sentence and remand for recalculation of the sentence in conformance with this opinion.

Affirmed in part, reversed in part, and remanded.